Paul Henry Pennebaker v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-843

NOT DESIGNATED FOR PUBLICATION

PAUL HENRY PENNEBAKER

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered October 6, 2005

APPEAL FROM THE CIRCUIT COURT OF CONWAY COUNTY, CR 2001-168A, HON. PAUL EDWARD DANIELSON, JUDGE

AFFIRMED

PER CURIAM

Paul Pennebaker was convicted by a jury of manufacture of a controlled substance, methamphetamine, and possession of a controlled substance, methamphetamine, and his sentences were enhanced under Ark. Code Ann. § 5-64-418 (Supp. 2003) for a total of 240 months' incarceration in the Arkansas Department of Correction. Pennebaker appealed his conviction and the Arkansas Court of Appeals affirmed in an unpublished opinion. Bearden v. State, CACR 02-1224 (Ark. App. April 7, 2004). Pennebaker filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1, which was denied. Pennebaker now brings this appeal of that order.

Appellant Pennebaker raises two points of error on appeal, alleging ineffective assistance of counsel for (1) failure to file a motion to suppress and (2) failure to object to the application of Ark. Code Ann. § 5-64-418 (Supp. 2003) to enhance his sentence. This court previously ordered appellant to file a complying brief in response to a motion by the State requesting compliance with Ark. Sup. Ct. R. 4-2. See, Pennebaker v. State, CR 04-843 (Ark. Jan. 6, 2005)(per curiam). Appellant has now filed his substituted brief, and the State asserts that the substituted brief still does not conform to Ark. Sup. Ct. R. 4-2. We must agree.

Appellant's substituted brief does not include an abstract. He has included within his argument what appear to be excerpts from the transcript of the trial. For those few portions of the testimony that are included, he has not abstracted or condensed it. Certainly, we have not been provided with an impartial condensation of all material portions necessary to an understanding of the questions presented for decision. As the State notes, appellant has failed even to provide a copy of the petition in his addendum. Clearly, appellant's brief still does not conform to Ark. Sup. Ct. R. 4-2 so as to permit us to reach the merits of the points raised on appeal.

In determining a claim of ineffective assistance of counsel, the totality of the evidence before the factfinder must be considered. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). An appellant must provide an abstract sufficient to conduct a meaningful review. Campbell v. State, 349 Ark. 111, 76 S.W.3d 271 (2002). In order to address appellant's points on appeal, a complete summary of all evidence is required. It is obvious here that, even were we to consider the brief excerpts of testimony within the argument portion of appellant's brief, he has failed to provide a sufficient portion to conduct a meaningful review.

All litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986)(per curiam); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984)(per curiam); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983)(per curiam). See also Tarry v. State, 353 Ark. 158, 114 S.W.3d 161 (2003). The pro se appellant receives no special consideration on appeal. Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000). See also, Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989).

Appellant was provided an opportunity to submit a conforming brief in accordance with Ark. Sup. Ct. R. 4-2. He has failed to do so and the denial of his petition must be affirmed for noncompliance in accordance with Ark. Sup. Ct. R. 4-2(b)(3).

Affirmed.